Summary
Full Decision
CASE NO. 130/2013-T
The arbitrators Dr. Jorge Manuel Lopes de Sousa (arbitrator-president), Dr. José Poças Falcão and Dr. José Vieira dos Reis, appointed by the Deontological Council of the Administrative Arbitration Center to form the Arbitral Tribunal, constituted on 7-8-2013, hereby agree as follows:
1. REPORT
A…, NIPC …, filed a request for the constitution of a collective arbitral tribunal, in accordance with the combined provisions of articles 2 and 10 of Decree-Law no. 10/2011, of 20 January (Legal Regime for Arbitration in Tax Matters, hereinafter referred to as RJAT), in which the Tax Authority and Customs Authority is named as defendant, with a view to the annulment of the assessments, dated 5-2-2013:
– of IRS relating to the year 2009, by withholding at source, no. 2013 …, in the amount of € 1,172,227.38; and
– of compensatory interest no. 2013 …, in the amount of € 128,334.81.
The Claimant also requests that the Tax Authority and Customs Authority be sentenced to pay her compensation for expenses resulting from the provision of security to suspend the tax enforcement execution no. ….
The request for constitution of the arbitral tribunal was accepted by the President of CAAD and automatically notified to the Tax Authority and Customs Authority on 06-06-2013.
In accordance with the provisions of subparagraph a) of n. 2 of article 6 and subparagraph b) of n. 1 of article 11 of the RJAT, as amended by article 228 of Law no. 66-B/2012, of 31 December, the Deontological Council appointed the arbitrators of the collective arbitral tribunal, who communicated their acceptance of the appointment within the applicable time frame.
On 23-07-2013 the parties were duly notified of this appointment and manifested no intention to reject the appointment of the arbitrators, in accordance with the combined provisions of article 11, n. 1, subparagraphs a) and b), of the RJAT and articles 6 and 7 of the Deontological Code.
Thus, in accordance with the provision in subparagraph c) of n. 1 of article 11 of the RJAT, as amended by article 228 of Law no. 66-B/2012, of 31 December, the collective arbitral tribunal was constituted on 07-08-2013.
On 24-10-2013, the meeting provided for in article 18 of the RJAT was held in which it was agreed that there would be testimonial evidence and written submissions.
On 11-11-2013, testimonial evidence was presented and, subsequently, the parties filed submissions.
The Claimant presented submissions with the following conclusions:
A. Underlying this case is a contract for the purchase and sale of share holdings concluded between the Claimant as buyer and one of her partners as seller.
B. The share holdings subject to the transaction carried out between the Claimant and her partner are shares representing the capital of Company B, which in turn held 96% of the capital of Company C, 54.94% of Company D, five real properties, including a farm in Alentejo and a residence in Restelo, in Lisbon, and 98% of Company E which in turn held three real properties, which included another residence in the Restelo area.
C. The Tax Authority understood that the price paid for the share holdings acquired exceeded the market value of these holdings.
D. Despite considering that the realization value was higher than the alleged market value of the shares, the Tax Authority did not correct this value, that is, did not reduce the acquisition value of the holding or the gains realized by the purchaser.
E. The Tax Authority decided to "requalify" an alleged excess in price as a dividend.
F. As a consequence it made an additional assessment to the Claimant for failing to withhold the IRS supposedly due on the also fictitious distribution of dividends to the partners.
G. This assessment cannot subsist in the legal order due to manifest errors of law in the tax treatment of a purchase and sale of shares and also due to existing errors of fact committed by the Tax Authority in determining the market value of the holding acquired and also due to violations of the law practiced in the reasoning of the assessment.
H. In factual terms it was proven in these proceedings that the Tax Authority erred in determining the market value of B, which, by itself alone, is more than sufficient to inevitably render the tax assessment void.
I. This error was proven by demonstrating the Tax Authority's calculation errors in determining the market value of D, using the comparable market transaction chosen by the Tax Authority.
J. In effect, the Tax Authority considered, on the basis of what it understood to be a comparable market transaction carried out around one year later, that the value of D would not exceed € 59.7 million.
K. However, it was clearly proven that the comparable market transaction used by the Tax Authority to make the correction to the value of D had been carried out on the basis of a valuation of D of € 77.6 million, i.e. € 10.6 million above the valuation assigned to D by the parties in the related transaction and which was € 67 million.
L. Furthermore, with regard to the determination of the value of Company C.
M. On this matter it was definitively proven that the Tax Authority made calculation errors when it decided to correct the market value that the parties had considered for this company on the basis of the reasoning that holding 96% of a company, when the remainder of the capital is composed of treasury shares, is not the same as holding the entirety of the capital.
N. And as if that were not enough, when presenting a new market value for the shares of B, the Tax Authority completely ignored that it held directly and indirectly (through the 98% holding it had in E) significant real estate assets that could not fail to be considered in determining the market value of the company.
O. Even if the previous errors had not been proven — which is only admitted in academic hypothesis and without conceding — it was proven that the Tax Authority also erred in considering and fictionalizing that the difference between the market value of B that it had reached and the contract value constituted a dividend or advance on account of profits.
P. This error was proven by demonstrating that the amount recorded in the partner account is nothing more than the credit that resulted for the partner, by virtue of non-payment of the price and the partners' agreement to constitute a loan with that credit.
Q. And it was also proven by the fact that the Claimant had no profits from previous years and at the date of the transaction (already very close to year-end), nor had any prospects of having any in that fiscal year or in the following ones, in amounts that resembled, even roughly, those presented by the tax authority.
R. Which, in fact, was confirmed in the following accounts.
S. And therefore, having the tax authority erred in determining the market value of B and also erred in having presumed a putative profit or an advance on account of non-existent profits, the tax assessment sub judice cannot subsist in the legal order.
T. Even if that were not the case — which is only admitted in academic hypothesis and without conceding — the tax assessment also lacks basis to be annulled due to the illegalities from which it suffers.
U. In the first place, the Portuguese transfer pricing regime, as set forth in the Corporate Income Tax Code and developed in Ordinance no. 1446-C/2001, does not allow de iure constituto corrections to individuals when those persons are not engaged in their activity subject to organized accounting.
V. Wherefore the correction made on the basis of a transfer pricing correction cannot succeed in the concrete case, and the tax assessment must be annulled due to violation of article 63, n. 11, of the Corporate Income Tax Code.
W. Article 63, n. 11, of the Corporate Income Tax Code, when interpreted in the sense that the correlative adjustment provided therein can be made in the sphere of an individual through the correction of the capital gain determined for IRS purposes, is unconstitutional due to violation of the principle of legality of taxes in its aspect of typicality, enshrined in article 103, n. 2, of the Constitution, unconstitutionality which is expressly raised herein.
X. And with even greater reason is also unconstitutional when interpreted, alone or in conjunction with article 36, n. 4, of the LGT, in the sense of permitting the Tax Authority to make a secondary adjustment by which it requalifies the income earned, due to lack of a specific enabling norm in violation of article 103, n. 2, of the Constitution, which requires that the law contain the discipline as complete as possible of the matter reserved and which integrates, in relation to each tax, the charge, incidence, unconstitutionality which is expressly raised herein.
Y. Unconstitutionality which is also raised for article 36, n. 4, of the LGT when interpreted in the sense that the tax administration's non-binding nature of the legal qualification of transactions carried out by taxpayers confers a true letter of freedom for the Tax Authority to extract the legal-tax effects it understands when those effects have no adherence to the proven reality, due to violation of the principle of legality of taxes in its aspect of typicality, albeit understood as open typicality.
Z. In the concrete case, the parties also never intended nor ever carried out any distribution of dividends, and even if they intended to they could not do so as the Claimant had no profits to distribute in the amount that the Tax Authority alleges (approximately € 5 million).
AA. The IRS assessment sub judice also violates the provisions of article 6, n. 4, of the IRS Code because the entries in the current account of partners derive from the loan that resulted from the deferral of payment of the price due for the purchase of the shares by the Claimant, as was proven, and not from any unknown fact.
BB. Finally, even if by absurdity the violations of law referred to above had not been committed, the assessment also violates article 7, n. 3, subparagraph a), § 2), of the IRS Code because this norm read in conjunction with article 6, n. 4, of the same diploma must be understood in the sense that the moment from which the profit or the advance on account of profits becomes subject to tax, i.e. the date of the making available of the income, does not coincide with the date of the entry in the current account of partner when that entry does not embody any outflow of goods from the company due to manifest impossibility.
CC. Subsidiarily it should further be stated that the assessment sub judice does not comply with the requirements of reasoning provided in article 77 of the LGT and is also, to that extent, subject to annulment.
DD. And as the assessment cannot subsist, neither can the assessment of compensatory interest associated with it subsist, and it is certain that the Claimant's conduct was in no way censurable — nor the determination of the value — as results from the documents and witness testimonies.
EE. Wherefore, after annulment of the assessments the Claimant should also be indemnified for the losses incurred with the provision of security to suspend the fiscal enforcement execution in the pending of this case, which loss is quantified at €2,601.12.
In these terms and in the best interests of the law, the present request for arbitral decision should be judged to succeed as proven and, consequently, the assessments of IRS by withholding at source and compensatory interest sub judice annulled, with the other legal consequences, and the Tax Authority sentenced to pay compensation in the amount of € 2,601.12 for the security provided to suspend the fiscal enforcement execution process in the pending of this dispute.
The Tax Authority and Customs Authority presented submissions in which it defends, in summary, the following, on the matter of law:
3.1 Save for better opinion it is unquestionably established that the contract concluded between Mr. Partner 1 and the now Claimant is configured as a related party transaction carried out between related entities.
3.2 It is equally apparent that the parties agreed in this transaction terms and conditions substantially different from the normal regulation that would exist if the participants, instead of being related, were independent entities.
3.3 With effect, in particular, on the price agreed for the reciprocal purchase/sale, which was higher than that which would be the market value of the holdings, or, put differently, the price was higher than what would have been practiced in an unrelated transaction;
3.4 Consequently, and in accordance with the tax legal framework adopted, the excess over the price of the shares could not be considered, as it does not truly integrate it, as sale value;
3.5 It is also unquestionable that, by force of that which is contractually stipulated, the value of the transaction was accounted for in the sphere of the purchaser, now Claimant, as counterpart of a loan account in favor of the seller / creditor / shareholder / administrator;
3.6 That is, that value accounted for as loans, in addition to the value relating to what would be the normal consideration of the transaction, comprises the value of the excess of the price of the shares;
3.7 We have therefore that, supported by the contract concluded, the seller (majority shareholder and administrator of the purchaser) saw recorded in his favor, in a loan account, a value that is known to be higher (by € 5,861,136.91) than the consideration that in normal circumstances would be due as acquisition price.
3.8 In this way, it is clear that, as we mentioned earlier, the value of the excess does not derive, nor could derive, from any loan granted by the partner to the company, nor from payment by this to that of any remuneration, nor yet from any consideration for the exercise of a corporate office.
3.9 Now, the law provides that, when these circumstances are verified, such entries of amounts with undetermined origin are presumed to have been made as profits or advance on account of profits.
3.10 Nor should it be said, as was said in the initial petition and reiterated in submissions, that the taxation in question could never succeed because the aforesaid loans would never have been (actually) reimbursed to the partner.
3.11 For, it is evident that, by force of the contract and the accounting which followed it, Mr. Partner 1 came to have a credit which, in addition to being demandable at any time, was susceptible to alienation to third parties.
3.12 Something that is clearly proven by the factuality of the proceedings, namely by the undeniable fact that the loan granted by Mr. Partner 1 to the now Claimant was only possible because, at an earlier moment, legally the amounts loaned entered (so that they could leave) the legal sphere of the lender.
3.13 Moreover, even if it were considered that what is at issue is merely a deferral of credits, as the claimant has now alleged, invoking article 243 of the Commercial Societies Code, it would always be important to note that, in fact, there are "circumstances relating to transactions entered into with the company, regardless of the quality of partner"
3.14 Whoever benefits from a legal presumption is excused from proving the fact to which it leads (cf. article 350, n. 1, of the Civil Code), having only to prove the fact that serves as the basis for the presumption for the presumed fact to be considered proven.
3.15 Article 6 of the IRS Code, entitled "Presumptions relating to income from category E", establishes, in its n. 4, the following:
"Entries in any current accounts of partners, recorded in commercial or civil companies in commercial form, when not resulting from loans, the provision of work or the exercise of corporate offices, are presumed to have been made as profits or advances on account of profits".
3.16 In the concrete case, and as we have already stated herein, the price agreed in the purchase/sale of the shares was clearly higher than that which would have been practiced in an unrelated transaction, or, put differently, the agreed price was higher than what would be the market value of the holdings.
3.17 Consequently, having regard to the transfer pricing regime, such excess cannot be considered as part of the sale value of the holdings.
3.18 Such price inflation, however, was entered, together with the remaining part, in the partner's current account at the date of the transaction, constituting from that exact moment a right over the company that the partner could demand at any time.
3.19 The entries having not been made as a loan, nor being resulting from the provision of work or the exercise of corporate offices (nor does the claimant, it is said, argue to the contrary), it was presumed that they were made as a distribution of profits or advance on account of profits.
3.20 Which constitutes income from capital, taxable under IRS, in accordance with n. 1 and subparagraph h) of n. 2 of article 5, of n. 4 of article 6 and of n. 2 of subparagraph a) of n. 3 of article 7 of the IRS Code).
3.21 Benefiting from this presumption, the Tax Administration does not need to demonstrate the perception of profits or their advance.
3.22 It is rather for the Claimant to rebut it, something which, as is apparent, did not occur.
3.23 It will therefore be necessary to pay attention to the provisions of article 7 n. 3 subparagraph a) point 2, which provides that profits from entities subject to Corporate Income Tax made available to their respective shareholders or holders, including advances on account of profits, are subject to taxation from the moment they are made available (art. 5 n. 2 subparagraph h).
3.24 In this way, the taxation of the excess determined (and entered in the partner's current account) should occur at the moment it was made available to its holders.
3.25 The relevant moment for purposes of subjection to taxation is that of the entry of the respective credit in the "shareholder" account.
3.26 For that the availability of the resource/advance on profits occurs at the moment of execution of the contract for the purchase and sale of shares.
3.27 In summary, taking into account the tax framework for the taxation of the excess determined as a result of the correction proposed by application of the transfer pricing regime to the transaction for the sale of capital holdings between related entities, as well as the moment at which this taxation should occur, the taxation of these income is carried out as follows:
– In accordance with article 7, n. 3, subparagraph a), point 2, of the IRS Code, withholding at source should occur at the moment "in which they are made available to their holders".
– Advances on account of profits received by individuals are subject to withholding at source, as final levy, at the liberatory rate of 20% (art. 71, n. 3, subparagraph c) of the IRS Code (version in force at the date of the facts) at the moment they are paid, or made available, such that they will not be taxed in the sphere of their beneficiaries (in this case Mr. Partner 1).
– The entity withholds the tax due which should be delivered to the State by the 20th day of the month following that in which it was deducted, as provided in art. 13 of Decree-Law no. 42/91, of 22 January, n. 3 of article 98 and subparagraph a) of n. 3 of article 101 of the IRS Code.
3.28 In accordance with the above, the total tax not withheld at source and not delivered was € 1,246,682.08 as shown in the table below:
[IRS Corrections – Withholding at Source – table content not clearly legible in original]
3.29 The assessments indicated as the object of these proceedings are thus owed.
3.30 It is to be reiterated in this regard, avoiding useless repetitions, everything we set out in the Reply, to which we refer and here give as reproduced.
3.31 However, beyond what has already been referred to above, in light of the tenor of the claimant's submissions we cannot fail to clarify some aspects that we understand to be essential to the decision of the case:
3.32 The claimant states – cf. article 33 of the submissions - that the criteria contained in the document that appears in annex 4 to the report were especially used, giving the impression that she would also have, in some way, considered as an evaluation criterion for "B" the respective real estate assets.
3.33 What the claimant, however, had stated clearly in the aforementioned document was that the valuation value she considered was based on the value of the equity of company "C" and the valuation value of "D"
3.34 In light of the tenor of that document there is no doubt that no real estate assets of which it was a direct or indirect owner (via "E") were considered and were not a criterion of the claimant
3.35 Moreover, to the extent that she did not consider it that, as she states in article 34 of her submissions, she did not even come to ascertain what the market value of the real estate assets would be.
3.36 As for the rest we reiterate the position already assumed in the Reply.
3.37 With respect to the relevance of the percentage of treasury shares held by company "C" (at the time of the transfer of "B", which, let us recall, held approximately 96% of the aforementioned "C"), it is also important here to give as reproduced everything we opportunely argued on the matter.
3.38 It is only necessary to note that, save with all due respect, the Claimant, in her arguments (cf. in particular articles 26 and 28 of the Claimant's submissions), once again incurs in a less correct interpretation of what in this matter was referred to in the inspection report and also substantiated the correction sub judice.
3.39 In the case at hand, what was (and is) at issue, that is, the criterion which the taxpayer opted for, was not that of share capital (held directly or indirectly), it was that of equity.
3.40 What was actually done in the inspection report was to weigh the relevance of treasury shares in determining the value resulting from equity (in accordance with, let it be reiterated, the criterion chosen by the taxpayer).
3.41 Finally, with respect to the determination of the value of company "D", it must be underlined here, from the outset, that, as this Tribunal can easily verify, the value that served as the basis for the transaction from the viewpoint of the claimant (cf. annex 4 of the report) is € 67 million, which is much lower than the value that was determined in the study which the claimant invokes – the Bank X study.
3.42 Furthermore, it is important to reinforce that the Tax Authority never challenged the base values, as well as the criteria defined by the claimant.
3.43 It should be noted that the studies of Consultant Y, Consultant Z and Bank X resulted in significantly disparate valuation values (as in fact emerges from article 19 of the Claimant's submissions), hence the use of the comparable market price as a reference, since it ensures the highest degree of comparability.
3.44 Thus, it is important to conclude that, despite the claimant maintaining the Bank X study as reference, however, what was relevant, and what had to be relevant, was the price agreed in that transaction, the comparable transaction.
3.45 It should further be noted that the value ascertained by the Claimant – contrary to what is affirmed by her, in her submissions, and as was already noted in the Reply – is unreal, since it labors under manifest calculation error.
3.46 The indicative price results from the valuation value deducted of any discounts/penalties.
3.47 That is, from the value obtained in the valuation, which in the case at hand results from the weighted average of three scenarios, is deducted 25% by virtue of it being a minority position (discount considered the most appropriate in the Bank X study) to which is added a penalty of 5%.
3.48 To construct the valuation value from the price obtained after discount and penalty it is necessary to perform the operation inverse to that used to go from the valuation value to the price.
3.49 Thus, for a Bank X valuation value of € 2,730,000, the result is € 2,407,155 after a 25% discount = € 2,730,000 * 0.75 (100% - 25%) and a value of € 2,286,797 after a 5% penalty = € 2,407,155 * 0.95 (100% - 5%), a value much higher than the value practiced – € 1,786,550 – it is therefore evident that this study was not the reference for the transaction.
3.50 If we intended to arrive at the Bank X valuation value from the price/value of the transaction – € 1,786,550 – we would arrive at the following value € 1,786,550 / 0.75 / 0.95 = € 2,507,446, a value which deviates by approximately € 100,000 from the Bank X indicative value.
3.51 In the transaction now presented by the Claimant, for the calculation of the market value of D based on the comparable transaction, to the agreed value – € 1,786,555.25 divided by the value of the holding alienated, the Claimant multiplied 1.25 with respect to the discount applied by Bank X, and 1.05 of the penalty.
3.52 However, the transaction is wrong in that the Claimant multiplied 1.25 with respect to the Bank X discount and 1.05 of the penalty, instead of dividing the value obtained by 1.25 and 1.05.
3.53 In effect, the value practiced in accordance with the contract is obtained after the application of the penalty and of the value of the discount.
3.54 What the Claimant did was take the price and multiply the value of the discount and the penalty, when she should have divided the value of the price, the value of the discount and the penalty.
3.55 Therefore, the reasoning presented by the Claimant is based on incorrect calculations, completely distorting the determination of the market value of company D.
3.56 Being therefore unfounded, the position assumed by the arbitral Claimant.
In these terms and in the more of Law, the present request for arbitral decision should be judged to be without merit, as not proven, the assessments indicated as the object of the requested decision remaining in effect.
The arbitral tribunal was regularly constituted and is competent.
The parties enjoy standing and legal capacity and are entitled (articles 4 and 10, n. 2, of the same diploma and art. 1 of Ordinance no. 112-A/2011, of 22 March).
The proceeding does not suffer from nullities.
2. FINDINGS OF FACT
2.1. Facts found to be proven
a) The Claimant is a company managing share holdings of family structure, constituted in 2005, whose capital is divided among Partner 1 (abbreviatedly "Partner 1"), with 94% of the capital, and her six children, each with 1% of the capital.
b) Although only 4 of Partner 1's 6 children were present at the act of constitution of the company (such that he initially subscribed 96% of the capital), the latter later donated 2% of his 96% of the capital of the Claimant to his two children who were not present, retaining 94% of the capital;
c) Dr. Partner 1, until the end of 2009, was also majority shareholder (with 97.20%) of the capital of company B (hereinafter, abbreviatedly, "B').
d) B, in turn, held relevant holdings in three other companies:
1st - C (with 95.988% of the capital and 99.99% of voting rights);
2nd - E Real Estate (with 98% of the capital); and
3rd - D — … (with 54.94% of the capital);
e) On 12-12-2009 a contract entitled "Contract for the Purchase and Sale of Shares and Promise of Cession of Credit" was executed between Partner 1 as seller and the Claimant as purchaser (document no. 3, attached to the request for arbitral decision, the tenor of which is given as reproduced);
f) The seller Partner 1 was also president of the board of administration of the Claimant;
g) In accordance with this contract the seller alienated to the Claimant 97,060 shares representing 97.06% of the capital of B;
h) As results from clause 1, number 2, of the said contract: "The purchase and sale price of the Shares is € 95,298,346.00, a sum which is credited to the Seller, with the value of the credit being recorded in the loan account that the Seller has with the purchaser. The loans thus constituted and provided shall not bear interest".
i) Under the terms of Clause 2, n. 1, Dr. Partner 1 promised to cede to the Claimant which, in turn promised to acquire, part of the credit by loan that it has over B, in the value of € 40,369,114.49;
j) As results from n. 2 of the same Clause 2, "The cession of the Credits shall be effectuated at nominal value and shall take place by the end of the first semester of 2010, on a date to be agreed among the parties. Absent agreement to the contrary the price of the cession shall be credited to the Seller, with the respective value being recorded in the loan account that the Seller has with the Purchaser, without bearing interest";
k) The Claimant accounted for the shares acquired from Partner 1 at the respective "acquisition value", in financial investments;
l) On 31-12-2009, by application of the equity method (MEP), the Claimant made an adjustment of the value at which the shares had been accounted (acquisition value), the value at which they were accounted being reduced from € 95,298,346.00 to € 43,977,910.26.
m) This adjustment was made by entries in accounts 4111032 – B – equity equivalence and 55103 – Transition adjustment B, in the amount of € 51,320,435.74, and was made because the equity of B on 31 December 2009 did not yet reflect the revaluation of the assets of D which, at that date, were still in the process of valuation;
n) These adjustments, resulting from the application of the equity equivalence method, left the company with negative equity;
o) At the level of equity, the Claimant closed the 2008 fiscal year with positive equity of € 393,391.26, evidencing, however, a negative net result for the fiscal year of € 180,327.05, reserves in the amount of € 135,732.22 and an accumulated negative retained earnings of € 62,013.91 (document no. 4 attached to the request for arbitral decision, the tenor of which is given as reproduced);
p) By the end of 2009, the equity of the Claimant recorded a reduction to a negative value of € 50,571,833.82, having recorded a net result for the fiscal year of € 355,210.66 (document no. 5 attached to the request for arbitral decision, the tenor of which is given as reproduced).
q) Pursuant to Service Orders no. OI… and OI…, an inspection action was carried out on company "A" – now arbitral claimant –, of general scope and covering the fiscal years 2009 and 2010;
r) The Tax Authority and Customs Authority, in the inspection report, understood that the prerequisites were met to frame the transaction within the scope of the transfer pricing regime (provided for in article 63 of the Corporate Income Tax Code), such that it requested the claimant for information regarding the elements and values by which it had proceeded to the determination of the value of "B";
s) On 28-3-2012, the Claimant submitted the document which constitutes annex 4 to the inspection report where all the values and criteria by which it opted to follow in the valuation both of company "B" and of company "D" are set out;
t) The valuation value of "B", in accordance with this document, was € 98,184,985.00, which, for a holding to be acquired of 97.06%, resulted in the price of € 95,298,346.00;
u) The price of the shares of B € 95,298,346.00 as a result of the valuation made of its holdings, was broken down as follows:
– € 61,375,185.00, corresponding to the Equity (in 2008) of company C (the equity of the C group, in accordance with the Consolidated Accounts were in 2008 in the value of € 61,375,185.00, which for 96% of the holding of B acquired corresponds only to € 58,920,177.60;
– € 36,809,800.00, the pro-rata share (54.94%) in the D group (which had the valuation value of € 67,000,000.00);
v) B also participates, at 98%, in the capital of company E …, Lda, which has equity of € 71,155.18;
w) In determining the market value of B the Claimant did not consider or give weight to the real estate assets owned by the company (directly or indirectly through company E, Lda), in particular four urban and one rural property;
x) To calculate the value of D, the Tax Authority and Customs Authority based itself on a "Valuation Study of Consultant Y" - Tourism Project …, requested by B which had as its "objective to provide (.) an estimate of 100% of the market value of the Equity of D with reference to the date of 30 June 2009, so as to estimate the value of the shares of which a minority shareholder of the Company is holder (Dr. Partner 2)" and on the transaction for the purchase and sale of shares carried out on the basis of this study;
y) The value which served as the basis for the determination of the value of the shares of the minority shareholder, holding 3.516% of the capital of D, was that indicated in a study of Bank X in which it understood that that of the equity of D was approximately € 77.6 million and that a discount of 25% should be made to the value of these shares, by virtue of it being a minority shareholder (document no. 27 attached to the request for arbitral decision, the tenor of which is given as reproduced and testimony of witness Partner 2);
z) The determination of the value of these shares was carried out in accordance with that established in the contract between B and its shareholder Partner 2, a copy of which constitutes document no. 24 attached to the request for arbitral decision, the tenor of which is given as reproduced;
aa) The average indicative value of the equity of D determined in the study of Consultant Y was approximately € 61 million, an average of the minimum and maximum values of € 45 million and € 78 million (document no. 12 attached to the request for arbitral decision, the tenor of which is given as reproduced);
bb) From the analysis which the Tax Authority and Customs Authority carried out, it concluded that the price practiced and the conditions mutually agreed in the transaction for the sale of the shares could not be considered substantially identical to what would be practiced between independent entities in comparable transactions and that the contract for the purchase and sale of these shares was concluded at a value that exceeded by € 5,861,138.91, that which would be the normal market value of the holdings transacted, thus calculated:
[table content not clearly legible in original document]
cc) As a consequence of this inspection, the Tax Authority and Customs Authority concluded that
"From the analysis carried out on the transaction for the sale of the holding in B by Mr. Partner 1 to A SGPS, SA, it was verified that the same is a related party transaction in light of the provisions of the Transfer Pricing Regime, enshrined in art. 63 of the Corporate Income Tax Code and regulated by Ordinance no. 1446-C/2001, of 21/12, given that the alienation of B occurred between entities with special relations. It was further determined that the alienation was carried out for an amount higher than that which would have been contracted, accepted and practiced between independent entities in comparable transactions. Consequently, the excess attributed to the revaluation of the holding, quantified at € 5,861,136.91, was requalified as an advance on account of profits, in light of that referred to in art. 5, n. 2 subparagraph h), art. 6, n. 4 and art. 7, n. 3 subparagraph a) of the IRS Code, an amount taxable at the liberatory rate provided in art. 71, n. 3 subparagraph c) of the same diploma (20%), in the version applicable at the date of the facts, which implied the making of a withholding at source of € 1,172,227.38, which should have been carried out at the date of the contract concluded, that is, in December 2009, by application of art. 13 of Decree-Law no. 42/91, of 22/01, and of arts 98, n. 3 and 101, n. 3 subparagraph a) of the IRS Code.
(...)
The respective Correction Document was prepared and a Notice was filed for the infringement verified, proposing referral to the competent Tax Service.
Notification to the taxpayers of the result of the present inspection action is also proposed (Opinion of the Team Chief, at fls. 3 of the document "PA1.pdf", attached to the reply of the Tax Authority and Customs Authority, the tenor of which is given as reproduced);
dd) In the Inspection Report reference is made, among other things, to the following:
"In accordance with n. 4 of art. 36 of the LGT "the qualification of the legal transaction carried out by the parties, even in an authentic document, does not bind the tax administration" given that the excess over the price of the shares that would be practiced between independent entities, cannot be considered as part of the value of the sale of the social holdings, does not result from loans, the provision of work or the exercise of corporate offices by Partner 1, such excess is presumed to be attributed as profits or advance on account of profits, in accordance with n. 4 of article 6 of the IRS Code, of A.
In the case at hand, these are profits obtained, or to be obtained, by A, SGPS, SA, made available to its shareholder and administrator without any taxation, clearly configuring the figure of profits or advance on account of profits as defined in the IRS Code.
The IRS Code presents us with a general notion, more broad (art. 5 n. 1) and an exemplificative enumeration of some income that is considered from capital (art. 5 n. 2 and following).
Thus, income from capital is considered, in accordance with art. 5 n. 1, the fruits and other economic advantages, of whatever nature or denomination, whether pecuniary or in kind, proceeding, directly or indirectly, from patrimonial elements, goods, rights or legal situations, of a movable nature, as well as from the respective modification, transmission or cessation, with the exception of gains and other income that is taxed in other categories of income.
As we verify, the rule of incidence here resulting is sufficiently broad to encompass any situation relating to movable securities that is not taxed in another category.
More specifically considered in subparagraph h) of n. 2 of article 5 of the IRS Code that are fruits and economic advantages, in particular, the profits made available to the partners, including advances on account of profits.
Already article 6 of the IRS Code comes to establish some legal presumptions for income from category E, referring to its n. 4 that are presumed profits or advances on account of profits the entries in any current accounts of partners, recorded in commercial or civil companies in commercial form, when not resulting from loans, the provision of work or the exercise of corporate offices.
Now, the excess in relation to the price of the holdings practiced in the transaction for the sale of social holdings was, together with the remaining part, entered in the partner's current account at the date of the transaction, constituting from that moment, a right over the company that the shareholder could demand at any time (note that the purchase and sale contract is silent regarding deadlines and payment/receipt conditions, except in the part concerning the cession of credits/loans). The credit in question over the company enters immediately into the sphere of the partner's assets, being able to use it as he sees fit, including its negotiation with third parties".
ee) By order of the Financial Director of 15-10-2012, agreement was manifested with the proposal made in the inspection report (fls. 1 of the document "PA1.pdf", attached to the reply of the Tax Authority and Customs Authority, the tenor of which is given as reproduced);
ff) On 5-2-2013, the Tax Authority and Customs Authority prepared the additional IRS assessment no. 2013 …, relating to withholdings at source, in the value of € 1,172,227.38 and the compensatory interest assessment no. 2013 …, in the value of € 128,334.81;
gg) The Claimant spent the sum of € 2,601.12 with the transfer tax due by pledge of shares which it constituted to suspend the fiscal execution no. …, instituted by the Tax Authority and Customs Authority for collection of the assessed amount (document no. 1 attached to the submissions of the Claimant, and articles 220 to 224 of the request for arbitral decision and 107 to 109 of the submissions of the Claimant, which are not disputed).
2.2. Facts not proven
There are no facts relevant to the decision of the case that have not been proven.
2.3. Reasoning of the decision on the findings of fact
The establishment of the findings of fact was based on the administrative file, on documents attached to the initial petition, on statements of the Claimant which are not disputed by the Tax Authority and Customs Authority and on the testimony of witness Partner 2 who appeared to testify with impartiality and with knowledge of the facts about which he testified.
3. MERITS
It results from the findings of fact established that the Tax Authority and Customs Authority understood it to be applying the transfer pricing regime, provided for in article 63 of the Corporate Income Tax Code, to the contract concluded between the Claimant and her majority shareholder Partner 1, through which she acquired from him shares of B.
The Tax Authority and Customs Authority understood that the acquisition price exceeded by € 5,861,136.91 what would be agreed between independent entities and presumed that this excess should be considered an "advance on account of profits", an income from capital for IRS purposes, subject to withholding at source, at the liberatory rate of 20%, in accordance with articles 5, n. 2, subparagraph h), 6, n. 4, 7, n. 3, and 71, n. 3, subparagraph c), of the IRS Code.
The Claimant imputes to the assessment act impugned vice of violation of law due to error in the prerequisites of fact for the application of article 63, n. 11, of the Corporate Income Tax Code, articles 3, n. 2; 4, n. 3 and 5; 5, subparagraphs a) and f); 6; 17, n. 1 and 20, n. 1, all of Ordinance no. 1446-C/2001, of 21 December, article 36, n. 4, of the LGT, articles 5, n. 2, subparagraph h); 6, n. 4; 7, n. 3, subparagraph a), § 2; 71, n. 1, subparagraph c); 98 and 101, n. 2, subparagraph a), all of the IRS Code.
The Corporate Income Tax Code provides for the "transfer pricing" regime in its article 63, which establishes the following:
Article 63
Transfer Pricing
1 – In commercial transactions, including in particular transactions or series of transactions concerning goods, rights or services, as well as in financial transactions, carried out between a taxpayer and any other entity, whether subject to Corporate Income Tax or not, with which it is in a situation of special relations, the terms or conditions substantially identical to those that would normally be contracted, accepted and practiced between independent entities in comparable transactions must be contracted, accepted and practiced.
2 – The taxpayer must adopt, for the determination of the terms and conditions that would normally be agreed, accepted or practiced between independent entities, the method or methods capable of assuring the highest degree of comparability between the transactions or series of transactions which it carries out and others substantially identical, in normal market situations or in the absence of special relations, taking into account, in particular, the characteristics of the goods, rights or services, the market position, the economic and financial situation, the business strategy, and other relevant characteristics of the taxpayers involved, the functions performed by them, the assets used and the distribution of risk.
3 – The methods used must be:
a) The comparable uncontrolled price method, the resale price method or the cost plus method;
b) The profit split method, the transactional net margin method or another, when the methods referred to in the previous subparagraph cannot be applied or, being able to be, do not permit obtaining the most reliable measure of the terms and conditions that independent entities would normally agree, accept or practice.
4 – Special relations are considered to exist between two entities in situations in which one has the power to exercise, directly or indirectly, a significant influence on the management decisions of the other, which is considered verified, in particular, between:
a) An entity and the holders of its capital, or the spouses, ascendants or descendants of these, who hold, directly or indirectly, a holding not less than 10% of the capital or voting rights;
b) Entities in which the same capital holders, their spouses, ascendants or descendants hold, directly or indirectly, a holding not less than 10% of the capital or voting rights;
c) An entity and the members of its corporate bodies, or of any management, direction, administration or supervisory bodies, and their spouses, ascendants and descendants;
d) Entities in which the majority of members of the corporate bodies, or of the members of any management, direction, administration or supervisory bodies, are the same persons or, being different persons, are linked by marriage, legally recognized de facto union or kinship in the direct line;
e) Entities linked by a contract of subordination, of equal partnership or another of equivalent effect;
f) Companies which are in a relationship of domination, in the terms in which this is defined in the diplomas which establish the obligation to prepare consolidated financial statements;
g) Entities between which, by force of the relations, commercial, financial, professional or legal relations between them, directly or indirectly established or practiced, a situation of dependence is verified in the exercise of their activity, in particular when there occurs between them any of the following situations:
-
The exercise of the activity of one depends substantially on the cession of rights of industrial or intellectual property or know-how held by the other;
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The supply of raw materials or access to sales channels for products, merchandise or services by one depend substantially on the other;
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A substantial part of the activity of one can only be realized with the other or depends on decisions of this;
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The right to set prices, or conditions of equivalent economic effect, relating to goods or services transacted, provided or acquired by one is, by constant imposition of legal act, in the ownership of the other;
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By the terms and conditions of their commercial or legal relationship, one can condition the management decisions of the other, based on facts or circumstances foreign to the actual commercial or professional relationship.
h) An entity resident or non-resident with a permanent establishment situated in Portuguese territory and an entity subject to a clearly more favorable tax regime resident in a country, territory or region appearing on the list approved by ordinance of the Minister of Finance.
5 – For purposes of calculating the percentage level of indirect participation in capital or voting rights referred to in the previous number, in situations where there are no special rules defined, the criteria provided in n. 2 of article 483 of the Commercial Societies Code are applicable.
6 – The taxpayer must keep organized, in accordance with the terms established for the fiscal documentation process referred to in article 130, the documentation relating to the policy adopted regarding transfer pricing, including the guidelines or instructions relating to its application, the contracts and other legal acts concluded with entities which with it are in a situation of special relations, with the modifications that occur and with information on their compliance, the documentation and information relating to those entities and also to the companies and goods or services used as a comparison term, the functional and financial analyses and sector data, and other information and elements which it took into consideration for the determination of the terms and conditions normally agreed, accepted or practiced between independent entities and for the selection of the method or methods used.
7 – The taxpayer must indicate, in the annual statement of accounting and tax information referred to in article 121, the existence or non-existence, in the fiscal period to which it relates, of transactions with entities with which it is in a situation of special relations, and must further, in case it declares their existence:
a) Identify the entities in question;
b) Identify and declare the amount of transactions carried out with each one;
c) Declare whether it organized, at the time the transactions took place, and maintains, the documentation relating to the transfer prices practiced.
8 – Whenever the rules laid down in n. 1 are not observed, regarding transactions with non-resident entities, the taxpayer must make, in the statement referred to in article 120, the necessary positive corrections in the determination of taxable profit, by the amount corresponding to the tax effects attributable to this non-observance.
9 – In transactions carried out between a non-resident entity and its permanent establishment situated in Portuguese territory, or between this and other permanent establishments of that situated outside this territory, the rules contained in the previous numbers apply.
10 – The provisions of the previous numbers apply equally to persons who simultaneously carry out activities subject and not subject to the general regime of Corporate Income Tax.
11 – When the Directorate-General of Taxes proceeds to necessary corrections for the determination of taxable profit by virtue of special relations with another Corporate Income Tax taxpayer or IRS taxpayer, in the determination of the taxable profit of the latter the appropriate adjustments must be made which are a reflection of the corrections made in the determination of the taxable profit of the first.
12 – The Directorate-General of Taxes can also proceed to the correlative adjustment referred to in the previous number when such results from international conventions concluded by Portugal and in the terms and conditions provided therein.
13 – The application of the methods for determining transfer prices, whether to individualized transactions or to series of transactions, the type, nature and content of the documentation referred to in n. 6 and the procedures applicable to correlative adjustments are regulated by ordinance of the Minister of Finance.
This article 63 of the Corporate Income Tax Code is inserted in a subsection relating to "Corrections for purposes of the determination of taxable income" of this tax.
By referral of article 32 of the IRS Code, the rules of the Corporate Income Tax Code relating to the determination of business and professional income are equally applicable in IRS matters, that is, the income that falls within category B of IRS, as results from n. 1 of its article 1.
This means, from the outset, that the transfer pricing regime is not applicable to the determination of capital income, which can be classified in category E of IRS, but only to income of category B.
N. 11 of article 63 of the Corporate Income Tax Code confirms this restriction of the scope of application of this regime to business and professional income by establishing that "when the Directorate-General of Taxes proceeds to necessary corrections for the determination of taxable profit by virtue of special relations with another Corporate Income Tax taxpayer or IRS taxpayer, in the determination of the taxable profit of the latter the appropriate adjustments must be made which are a reflection of the corrections made in the determination of the taxable profit of the first".
This norm confirms that the scope of application of this norm, both with respect to the Corporate Income Tax taxpayer and to that with whom it has special relations, is limited to the determination of the taxable profit of both, a concept that only has application, in IRS matters, with respect to business and professional income, by force of the referral made in article 32 of the IRS Code.
Moreover, as also the Claimant argues, the correction of the value of transmission of shares has a special provision in article 52, n. 2, of the IRS Code, in which it is established that, in case of divergence between the actual value and the declared value, the value of alienation of shares is that which corresponds to it, determined on the basis of the last balance sheet, a regime which was not applied in the case at hand.
Thus, from this perspective alone, it is concluded that the impugned act suffers from vice of violation of law.
On the other hand, the Tax Authority and Customs Authority carried out a requalification of the transaction carried out, considering that, in the part that exceeded the price that it understood to be appropriate to a transaction between independent entities, the value of the transaction should be "requalified as an advance on account of profits", basing itself, for such purpose, on article 36, n. 4, of the LGT, which establishes that "the qualification of the legal transaction carried out by the parties, even in an authentic document, does not bind the tax administration".
In fact, this norm allows requalification, for tax purposes, of legal transactions carried out by the parties, but, by force of the principle of legality (articles 266, n. 2, of the Constitution of the Portuguese Republic and 55 of the LGT), the terms in which it can be carried out must be provided for in the law.
The conditions on which, in general, this possibility of requalification of legal transactions, for tax purposes, depends, are found concretized in the general anti-abuse clause, which appears in article 38, n. 2, of the LGT, in which it is established that "are ineffective within the tax scope the acts or legal transactions essentially or principally directed, by artificious or fraudulent means and with abuse of legal forms, to the reduction, elimination or temporary deferral of taxes that would be due as a result of facts, acts or legal transactions of identical economic purpose, or to the obtaining of tax advantages that would not be achieved, totally or partially, without the use of these means, tax then being applied in accordance with the applicable norms in their absence and the referred tax advantages not being produced".
In addition to this general norm on requalification of legal transactions for tax purposes, there are other special norms that provide for such possibility.
But, n. 4 of article 6 of the IRS Code, also used by the Tax Authority and Customs Authority in the substantiation of the impugned act, is not a norm of this type.
In fact, in this n. 4 of article 6 of the IRS Code it is established that "entries in any current accounts of partners, recorded in commercial or civil companies in commercial form, when not resulting from loans, the provision of work or the exercise of corporate offices, are presumed to have been made as profits or advance on account of profits", a presumption which is rebuttable, as is expressly stated in n. 5 of the same article.
This possibility of rebuttal shows clearly that that n. 4 of article 6 does not allow a requalification of legal transactions (a transaction of a certain type to be treated, for tax purposes, as being of another type), but only aims to facilitate for the Tax Authority and Customs Authority the proof of the distribution of profits or their advance: that is, when it is not demonstrated what is the basis of the entry of any amounts made by companies in current accounts of their partners, it is presumed, for purposes of taxation under IRS as income from capital, that it is a distribution of profits or their advance.
But, the probative force of this presumption ceases, and it must be considered that it has been rebutted in accordance with n. 5 of the same article, when the basis of the entries is ascertained.
Now, in the case at hand, it was proven that the entries made in the account of partner Partner 1 are based, in their entirety, on the credit originating from the said acquisition of shares, which was transformed into loans, which does not even allow the presumption to take effect, as loans constitute a species of the concept "loans", expressly referred to in that n. 4 of article 6 as a negative condition for the application of the presumption.
In any event, if the presumption were to apply, it was proven that the entries referred to do not reflect distribution of profits or their advance, such that it must be considered rebutted.
Therefore, the impugned act suffers from vice of violation of law, due to error regarding the prerequisites of law, embodied in violation of article 6, n. 4, of the IRS Code.
These vices of violation of law justify the annulment of the IRS assessment act impugned and of the compensatory interest assessment which is its consequence [article 135 of the Administrative Procedure Code, subsidiarily applicable, by force of the provision in article 2, subparagraph c), of the General Tax Law].
Thus, the request for annulment of the Corporate Income Tax assessment act and compensatory interest which is the object of the present request for arbitral decision proceeds.
Assuring the success of these vices effective protection of the rights of the Claimant, the examination of the other questions raised in the request for arbitral decision is prejudiced, as it would be futile.
4. COMPENSATION FOR UNDUE SECURITY
The Claimant further requests that the Tax Authority and Customs Authority be sentenced to pay her compensation for the expense of € 2,601.12, borne with the transfer tax due by pledge of shares which she constituted to suspend the fiscal execution no. ….
In accordance with the provision in subparagraph b) of art. 24 of the RJAT the decision on the merits of the claim which is not subject to appeal or challenge binds the tax administration from the end of the period provided for appeal or challenge, and this must, in the exact terms of the success of the decision on the merits in favor of the taxpayer and until the end of the period provided for the spontaneous execution of the sentences of the judicial tax tribunals, "restore the situation that would exist if the tax act which is the object of the decision had not been carried out, adopting the acts and operations necessary for such purpose".
In the legislative authorization on which the Government based itself to approve the RJAT, granted by art. 124 of Law no. 3-B/2010, of 28 April, is proclaimed, as the main directive of the institution of arbitration as an alternative form of jurisdictional resolution of conflicts in tax matters, that "the tax arbitration process must constitute an alternative procedural means to the process of judicial challenge and to the action for the recognition of a right or legitimate interest in tax matters".
Although art. 2, n. 1, subparagraphs a) and b), of the RJAT uses the expression "declaration of illegality" to define the competence of the arbitral tribunals which function in CAAD and does not make reference to constitutive (annulment) and condemnatory decisions, it should be understood, in harmony with the referred legislative authorization, that the competences which in judicial challenge proceedings are attributed to the tax tribunals in relation to acts whose assessment of legality falls within their competences are comprised therein.
Although the judicial challenge process is essentially a process of mere annulment (arts. 99 and 124 of the Civil Procedure Code for Tax Matters), condemnation of the tax administration in the payment of indemnity interest and compensation for undue security can be pronounced therein.
With respect to the request for sentence condemning the payment of compensation for undue provision of security, art. 171 of the Civil Procedure Code for Tax Matters, establishes that "the compensation in the case of bank guarantee or equivalent unduly provided shall be requested in the process in which the legality of the debt subject to enforcement is disputed" and that "the compensation should be requested in the complaint, challenge or appeal or in case its basis is subsequent within 30 days after its occurrence".
Thus, it is unequivocal that the judicial challenge process encompasses the possibility of sentence condemning the payment of undue security and is even, in principle, the appropriate procedural means to formulate such a request, which is justified by evident reasons of procedural economy, as the right to compensation for undue security depends on what is decided regarding the legality or illegality of the assessment act.
The request for constitution of the arbitral tribunal has as a consequence that it will be in the arbitration process that the "legality of the debt subject to enforcement" will be discussed, such that, as results from the express tenor of that n. 1 of the referred art. 171 of the Civil Procedure Code for Tax Matters, is also the arbitration process which is adequate to assess the request for compensation for undue security.
Moreover, the accumulation of requests relating to the same tax act is implicitly presupposed in art. 3 of the RJAT, when speaking of "accumulation of requests even if relating to different acts", which allows to understand that the accumulation of requests is also possible regarding the same tax act and the requests for compensation for indemnity interest and condemnation for undue security are susceptible to being encompassed by that formula, such that an interpretation in this sense has, at least, the minimum of verbal correspondence required by n. 2 of art. 9 of the Civil Code.
The regime for the right to compensation for undue security is contained in art. 53 of the LGT, which establishes the following:
Article 53
Security in case of undue payment
1. The debtor who, to suspend enforcement, offers bank guarantee or equivalent shall be compensated totally or partially for the losses resulting from its provision, if he has maintained it for a period exceeding three years in proportion of the success in administrative appeal, judicial challenge or opposition to enforcement which have as their object the debt guaranteed.
2. The period referred to in the previous number shall not apply when it is verified, in administrative complaint or judicial challenge, that there was error attributable to the services in the assessment of the tax.
3. The compensation referred to in number 1 has as its maximum limit the amount resulting from the application to the guaranteed value of the rate of indemnity interest provided in the present law and can be requested in the very process of administrative complaint or judicial challenge, or autonomously.
4. The compensation for undue provision of security shall be paid by abatement to the revenue of the tax in the year in which the payment was made.
In the case at hand, the error of the IRS assessment act and compensatory interest is based exclusively on the initiative of the Tax Authority and Customs Authority and the Claimant in no way contributed to this error being committed.
Therefore, the Claimant must be compensated for the loss which resulted to her from the provision of security, in the amount of € 2,601.12.
5. DECISION
In accordance with the above, this Arbitral Tribunal agrees to:
a) Judge the requests for annulment of the IRS assessment for the year 2009, no. 2013 …, in the amount of € 1,172,227.38, and of the compensatory interest assessment no. 2013 …, in the amount of € 128,334.81, to be well-founded.
b) Judge the request for compensation for undue security to be well-founded and sentence the Tax Authority and Customs Authority to pay to the Claimant the sum of € 2,601.12.
6. VALUE OF THE CASE
In accordance with the provision in art. 315, n. 2, of the Civil Procedure Code and 97-A, n. 1, subparagraph a), of the Civil Procedure Code for Tax Matters and 3, n. 2, of the Regulation of Court Costs in Tax Arbitration Proceedings, the value of the case is fixed at € 1,300,562.19.
7. COSTS
In accordance with art. 22, n. 4, of the RJAT, the amount of costs is fixed at € 17,748.00, in accordance with Table I attached to the Regulation of Court Costs in Tax Arbitration Proceedings, to be borne by the Tax Authority and Customs Authority.
Lisbon, 19 December 2013
The Arbitrators
(Jorge Manuel Lopes de Sousa)
(José Poças Falcão)
(José Vieira dos Reis)
Frequently Asked Questions
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